Marriage has already been redifined

Many court watchers, myself included, speculated that Chief Justice John Robertsmight swing in favor of marriage equality this time around, in large part to avoid a seemingly partisan 5–4 split. But Roberts didn’t appear to be playing the role of swing vote on Tuesday morning. When Bonauto said gay couples hoped to “join” the institution of marriage, Roberts suggested that they were instead looking to “redefine” it [emphasis mine], since marriage was defined as one man, one woman throughout history.

And then Dahlia Lithwick’s excellent summary of oral arguments and Justice Kennedy’s fixation on dignity:

So there is a rather extraordinary moment Tuesday morning, as the Supreme Court hears historic arguments in the marriage equality cases grouped under Obergefell v. Hodges, when Kennedy finds himself in an argument with John Bursch, Michigan’s special assistant attorney general, about whether marriage is a dignity-conferring enterprise, or not. Bursch, defending his state’s ban on same-sex marriage, is explaining that the purpose of marriage is not to confer dignity but to keep parents bonded to their biological children…

Bursch explains that if marriage is expanded to include same-sex couples, the whole purpose of the institution will change. According to him, that view of marriage is “keeping the couple bound to that child forever,” whereas the new purpose (once gay couples are allowed to wed) will be about “their emotional commitment to each other.” [emphasis mine]

Hello! That’s already happened! Raise your hand if you think modern marriage is not substantially about the emotional commitment to each other of two people. More Dahlia:

It is so strange to contemplate that ours is the sort of hyper-puritanical society that can’t acknowledge that the reason people marry is some combination of procreative purpose, emotional connection, and sex. That thankfully we needn’t pick just one. But oral argument proceeds like a Save the Children video, in which one must choose a single, lofty reason for marriage, close your eyes, and think of the queen.

All this reminds me of a great essay from Stephanie Coontz a few years back (that I continue to assign to my classes) that very much makes the point that while the name “marriage” has remained the same, the institution itself has undergone massive change:

Marriage has already been radically transformed – in a way that makes gay marriage not only inevitable, as Vice President Biden described it in an interview late last year, but also quite logical.

We are near the end of a two-stage revolution in the social understanding and legal definition of marriage. This revolution has overturned the most traditional functions of the institution: to reinforce differences in wealth and power and to establish distinct and unequal roles for men and women under the law.

For millennia, marriage was about property and power rather than love. Parents arranged their children’s unions to expand the family labor force, gain well-connected in-laws and seal business deals. Sometimes, to consolidate inheritances, parents prevented their younger children from marrying at all. For many people, marriage was an unavoidable duty. For others, it was a privilege, not a right. Often, servants, slaves and paupers were forbidden to wed.

But a little more than two centuries ago, people began to believe that they had a right to choose their partners on the basis of love rather than having their marriages arranged to suit the interests of parents or the state.

Love, not money, became the main reason for getting married, and more liberal divorce laws logically followed…

But huge as the repercussions of the love revolution were, they did not make same-sex marriage inevitable, because marriage continued to be based on differing roles and rights for husbands and wives: Wives were legally dependent on their husbands and performed specific wifely duties. This was part of what marriage cemented in society, and the reason marriage was between men and women. Only when distinct gender roles ceased to be the organizing principle of marriage – in just the past 40 years – did we start down the road to legalizing unions between two men or two women…

People now decide for themselves who and when – and whether – to marry. When they do wed, they decide for themselves whether to have children and how to divide household tasks. If they cannot agree, they are free to leave the marriage.

If gay marriage is legally recognized in this country, it will have little impact on the institution of marriage. In fact, the growing acceptance of same-sex marriage – an indication that it’s not just the president’s views that are “evolving” – is a symptom, rather than a cause, of the profound revolutions in marriage that have already taken place.

So, yes, marriage has historically been between a woman and a man, but that does not change the fact that it is complete ahistorical ignorance to suggest the institution has not undergone massive change. Whatever the court ultimately decides in this case, to argue that marriage, as our society currently understands and practices it, is based largely on procreation and discrete gender roles is simply at odds with what marriage has become in the modern world.